Feminist Judgements: Amending History

Ahead of the release of a book in 2016, Julie McCandless from the Feminist Judgements project speaks to Susan Barry about what the movement hopes to achieve, and why it’s so important.

It’s not often that judicial cases are taken and rewritten to serve the public, but then that’s exactly what the Feminist Judgements movement has been doing over the last few years. The project has been at work in Canada, England and Australia in recent years, and has most recently come to Ireland. The movement is taking hold across the world, with a book on Northern Irish and Irish re-imagined feminist judgements coming out in 2016.

“The first step towards the Feminist Judgments movement began with The Women’s Court of Canada,” Julie McCandless, who is involved with the Irish project says. “In about 2006 they became a bit disgruntled with how the equality provision in The Canadian Charter was being interpreted, so they thought they’d take cases being interpreted under it and rewrite them from a feminist perspective.”

Over the last number of years, the project has gone from strength to strength, with those involved extending its boundaries to as many cases as possible. Feminist judgements are not just confined to cases that saw women being unfairly judged, but rather aims to look at cases across a broad spectrum.

“Rather than it just be equality legislation, they tried to take the methodology and apply it to a much wider area of law – property, commercial contract, criminal law, family law,” McCandless says. “When people think of feminist legal theory or feminist perspectives, they’re usually limited to family, criminal or medical law and then it sort of stops. But cases don’t even have to involve women. Feminist judgments aren’t about ensuring the woman wins, it’s about something wider than that. This especially includes cases that don’t involve female litigants. It’s about taking theoretical work, but doing something actual legal practitioners have to do, and trying to replicate that.”

For the early pioneers of feminist judgements in England and Wales, there was a great deal of theoretical work to be done. One of the things they had to consider was how legitimate was it to talk about feminist judgements at all. As McCandless explains, however, accusations of bias are usually rooted in a system of oppressing the ‘other’. “People are only described as biased if they’re seen as ‘other’,” she says. “If you’re a white male conservative judge then it’s not seen as being biased, that’s just naturalised.”

In terms of their methodology, the Irish project is following similar parameters of the English one, however there are differences, as McCandless is keen to stress. “Ours is slightly different because we haven’t just done the Court of Appeal, we have some First Instance and Circuit Court cases too, so we’re taking the methodology a bit further in terms of cases that are covered. For our theoretical focus, we were very interested in thinking about the judge as a political actor. Most people would say judges aren’t political, but at the turn of 20th century, Ireland is a new country being set up, and Northern Ireland as well. What are judges saying about national identity in the case law? In our book we’re going to have a chapter that touches on this theme. We are very much seeing cases as something that are on the public record, telling us a story about how women become guardians of morality, and the role of women in Northern/Irish society.”

The role of women is, of course, central to the entire project, and for McCandless, some cases stuck out more than others as being particularly unjust.

“There was one case that really stuck out for me, and it was one I had never come across before,” she says. “It stands out because of the sheer objectification in the case. It’s BJM v CM. It was a successful case for the grant of an annulment, due to the fact the wife did not reveal she was physically disfigured before the marriage. I just found that case completely jaw dropping. There was a phrase used when the judge was talking about the woman in question: [He described her as] ‘a very slim and well-proportioned figure and is beautifully walked. I would think in her early 20s she would have been a very physically attractive woman.’”

“You’re talking about her as if she is a horse!” McCandless says. “I found it shocking the arguments the man was presenting, claiming it affected his ability to have sexual relations with his wife, but they had four children before the trial. We did try to reveal the context at the time, that it came in the early 1990s and that divorce wasn’t permitted. It was decided just before it became legalised, and this case is a very powerful statement about how they could get around the law. It’s fascinating in its injustice.”

The book launch of the edited collection will be taking place in 2016. It features about thirty re-written seminal cases. By presenting an alternative analysis, the conversation on a new, more equitable judicial path can be fuelled. The contributors hope that the book can be used as a teaching resource across the country. The website features comments which accompany each case to aid students in their understanding, as well as images and newspaper clippings from the time. While the judgements of the past cannot be changed, what is clear is that this project will enhance and affect the way in which we see judgements in representing them in a feminist reimagining.